Dismissal of the appeal against the BIOT MPA

Dismissal of the appeal against the BIOT MPA

The decision to create a no take marine protected area of the British Indian Ocean Territory has been subject to challenge in court over the last few years. On 6 June 2014 the final appeal was dismissed with the decision to create the MPA standing on all counts to which it was challenged.  The grounds for appeal were described as such in the ruling:

"2.     This appeal is a further chapter in the history of litigation arising out of the removal and subsequent exclusion of the native population from the Chagos Archipelago in the British Indian Ocean Territory ("BIOT"). Mr Bancoult challenges the decision taken by the Secretary of State for Foreign and Commonwealth Affairs on 1 April 2010 to create a "no-take" Marine Protected Area ("MPA") of some 250,000 square miles in the BIOT.

3.     By re-amended grounds of claim, the decision is said to be flawed in five respects each of which was rejected by the Divisional Court (Richards LJ and Mitting J) in a detailed judgment which was given on 11 June 2013. Three of these grounds are the subject of the present appeal. These are that the decision was unlawful because (i) it was actuated by an improper motive, namely an intention to prevent Chagossians and their descendants from resettling in the BIOT; (ii) the consultation paper which preceded the decision failed to disclose that the MPA proposal, in so far as it prohibited all fishing, would adversely affect the traditional and historical rights of Chagossians to fish in the waters of their homeland, as both Mauritian citizens and as the native population of the Chagos Islands; and (iii) it was in breach of the obligations imposed on the United Kingdom under article 4(3) of the Treaty of the European Union ("TEU") in conjunction with articles 198 and 199 of the Treaty on the Functioning of the European Union ("the TFEU")."

These challenges were all dismissed. If you wish to read the full details of the ruling it can be found at the following link: http://www.bailii.org/ew/cases/EWCA/Civ/2014/708.html